Edited by Po Jen Yap
March 2019, 194 pp.
Description: Many jurisdictions in Asia have vested their courts with the power of constitutional review. Traditionally, these courts would invalidate an impugned law to the extent of its inconsistency with the constitution. In common law systems, such an invalidation operates immediately and retrospectively; and courts in both common law and civil law systems would leave it to the legislature to introduce corrective legislation. In practice, however, both common law and civil law courts in Asia have devised novel constitutional remedies, often in the absence of explicit constitutional or statutory authorisation. Examining cases from Hong Kong, Bangladesh, Indonesia, India, and the Philippines, this collection of essays examines four novel constitutional remedies which have been judicially adopted - Prospective Invalidation, Suspension Order, Remedial Interpretation, and Judicial Directive - that blurs the distinction between adjudication and legislation.
'By taking us on an eye-opening tour of constitutional remedies in Asia, this fascinating collection of essays broadens the landscape of comparative constitutional analysis. Not only does it open up new territory, it also deepens our understanding of remedies by highlighting the multiple ways in which judges seek to engage political actors in the joint endeavour of making rights real.' - Aileen Kavanagh, Professor of Constitutional Law, University of Oxford, UK
'This volume brings important developments in Asia into comparative constitutional debates that have overwhelmingly focused on the U.K., Canada, and New Zealand. Combining theoretical engagement with on-the-ground experiences, it makes a valuable contribution and will broaden the scholarly conversations.' - Robert Leckey, Dean of the Faculty of Law and Samuel Gale Professor, McGill University, Canada
'A fascinating and rich systematic study of the under-studied but vital topic of comparative constitutional remedies. Constitutional Remedies in Asia is path-breaking scholarship which makes many deep connections between various remedies devised by courts and the political systems within which they operate. Essential reading for those interested in comparative constitutional law.' - Kent Roach, CM, FRSC, Prichard Wilson Chair in Law and Public Policy, University of Toronto, Canada
'Combining careful legal analysis with a realistic understanding of courts' positions in different national legal system, these essays are important contributions to the growing field of comparative constitutional studies.' - Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School, USA
'Constitutional Remedies in Asia is a sophisticated collection of chapters on an understudied aspect of judicial power and creativity. The volume illustrates the power of comparative analysis, integrating diverse country experiences into a common framework, and opens up new angles for courts and scholars.' - Tom Ginsburg, Leo Spitz Professor of International Law, University of Chicago, USA